Article 140 of the Iraqi Constitution: A critical analysis

By Judi Karwan

Perhaps the biggest unresolved matter of the Iraqi constitution is the issue revolving around Article 140. Article 140 asks for the implementation of the 58th article of the TAL.

Article 140
First: The executive authority shall undertake the necessary steps to complete the implementation of the requirements of all subparagraphs of Article 58 of the Transitional Administrative Law.
Second: The responsibility placed upon the executive branch of the Iraqi Transitional Government stipulated in Article 58 of the Transitional Administrative Law shall extend and continue to the executive authority elected in accordance with this Constitution, provided that it accomplishes completely (normalization and census and concludes with a referendum in Kirkuk and other disputed territories to determine the will of their citizens), by a date not to exceed the 31st of December 2007.

As of present day, the steps in Article 140 have not been implemented and the issues revolving the said Article are still left hanging and unresolved. As per mentioned in the article, the implementation of the said article shall go through three phases which are; Normalization, Census, and a Referendum in the so called disputed territories. The term ‘disputed territories’ is in itself not clear and problematic, Article 140 only states Kirkuk and ‘other disputed territories’ but different groups within Iraq do not completely agree on the territories and areas which are considered disputed. Due to sensitivity of the subject, the disputed areas should have been named individually and specifically in the constitution to avoid this issue. Apart from that, each phase has its own issues revolving around them.

Normalization

According to the 58 article of the Transitional Administrative Law, normalization requires the accomplishment of four actions: “1. Financial compensation, 2. Nationality correction, 3. Resolution of land disputes, 4. Pre-Ba’ath administrative boundary restoration.”. The article does not make clear the mechanisms for these steps to be implemented and as a result each of these actions faces a number of issues. For example regarding financial compensation, many community representatives have regarded financial compensation to be a major barrier for progress in implementing Article 140. A senior Kurdish official in Kirkuk was quoted saying “The office in Kirkuk now receives 17 billion Iraqi Dinars per year from the sovereign expenses which are to be decreased in 2015 budget…..around 600 billion IQD is the amount needed to complete the procedure.”. This can be seen as an indicator that the federal government in Baghdad does not have the will to finish the procedure. The Article also asks for a sort of de-arabisation in the disputed areas as a part of normalization, families who were brought in after the arabisation campaign would be compensated if they go back to their original cities so that original citizens of Kirkuk would return to their homes. This procedure is in itself fragile because many families mostly Arabs had no intent to go back to their original cities. As well as many deported families that had already started lives elsewhere had little intent to go back to Kirkuk because of the security and educational state of the city. Land disputes are another issue that is not easy to resolve. Until 2015, there were 8800 cases of land disputes dealt with by The Iraq Property Claims Commission (IPCC). A reason for this could be the weak rule of law, but that alone is not the issue. The procedure is slowed down by the number of appeals the decision gets. This shows how ill planned Article 140 is, as the deadline for the completion of all three steps (Normalization, Census, and Referendum) was 31st of December 2007. Pre-Ba’ath administrative boundary restoration is also a problematic procedure. The process includes many districts such as the districts of Kalar and Chamchamal that were detached from Kirkuk and attached to Suleimanya in 1976, the district of Tuz Khurmatu that was attached to the governorate of Sallahuddin in 1976 as well, and Kifri district that was attached to Dyala governorate in the same year. The restoration of pre-ba’ath administrative boundaries is clearly in the favor of the Kurds as the Districts of Chamchamal, Kifri, and Kalar are overwhelmingly Kurdish. As a result this step has faced Arab and Turkmen objections. The argument is that this issue does not limit itself to the Province of Kirkuk, rather the surrounding provinces as well, ultimately affecting all of Iraq. The Arabs and Turkmen further argue that dealing with Kirkuk specifically would need a general agreement between all the parties involved. This agreement has not been reached and the issue remains unresolved. This issue is specifically hard to resolve because of the fact the restoring the boundaries of Kirkuk would mean changing the boundaries of Suleimanya, Dyala,and Sallahuddin this in itself is a complicated procedure and the large objection of the Arabs and Turkmens makes the process of Pre-1975 administrative boundary restoration almost too complicated to ever succeed.

The Census and The Referendum

The issues facing these two procedures are not any less complicated than the normalization procedure. Originally, deadline was put for the census to be held in July 2007. The deadline was not met for a number of reasons. The main issue with the census stemmed from the question of whether to include an ethnicity question to identify the ethnicities in Kirkuk. The data from a census is very important for Kirkuk and the other disputed areas as it will provide data for the referendum that is supposed to take place after the census, but the issue with both the census and the referendum is mainly the same issue, who gets to participate and vote?. There is no clear answer to that question as the parties involved with the issue all have conflicting ideas on voter eligibility. The Arabs argue that anyone with Kirkuki documents should be allowed to vote in the referendum, while the Kurds ask for an implementation of the 1957 census as it precedes the arabisation campaign and includes the detached districts of Chamchamal, Kifri, Kalar, and Tuz, the Turkmen also argue for the implementation of the same census but with the current boundaries of Kirkuk. The Arabs completely refuse the implementation of the 1957 census and the Kurds and Turkmen reject the proposition that anyone with Kirkuki documents is eligible to vote, the Kurds and Turkmen also reject each other’s propositions, and as a result negotiations often have led to fail. The Arab rejection of the 1957 census is understandable since the number of Arabs eligible to vote would fall drastically. The issues regarding Article 140 often overlap each other as it is seen here, the issue of voter eligibility overlaps with the issue of Kirkuk’s boundary restoration, in turn making the whole process much more difficult and complicated.

Conclusion

These issues can be traced with the imprecise language of the Article 140 of the constitution, it calls for a referendum but does not specify who is eligible to vote and exactly which districts should be involved in the referendum, it calls for a restoration of the pre 1975 boundaries but does not clarify the mechanisms that should take place to achieve such a complicated step, as a result the Article remains as what it was, words on paper that are most likely never to be implemented.